State v. Smith

• Decision Date: 20 April 1910
• Citation: 67 S.E. 965,152 N.C. 842
• Parties: STATE v. SMITH.
• Court: North Carolina Supreme Court

67 S.E. 965

152 N.C. 842

STATE v. SMITH.

Supreme Court of North Carolina

April 20, 1910

Appeal from Superior Court, Forsyth County; Long, Judge.

Action by the State against John Smith. Judgment for the former, and the latter appeals. On motion to dismiss. Granted.

J. S. Grogan, for appellant.

The Attorney General, for the State.

PER CURIAM.

The affidavit to appeal in forma pauperis is fatally defective, as it omits the averment that it is made "in good faith," which is required by Revisal, § 3278. The appeal must be dismissed on motion as a matter of right, not of discretion. State v. Harris, 114 N.C. 830, 19 S.E. 154; State v. Rhodes, 112 N.C. 856, 16 S.E. 930; State v. Jackson, 112 N.C. 849, 16 S.E. 906; State v. Shoulders, 111 N.C. 637, 15 S.E. 877; State v. Wylde, 110 N.C. 500, 15 S.E. 5; State v. Tow, 103 N.C. 350, 9 S.E. 411; State v. Moore, 93 N.C. 500; State v. Payne, 93 N.C. 612; State v. Jones, 93 N.C. 617; State v. Morgan, 77 N.C. 510; State v. Divine, 69 N.C. 390, cited and approved; State v. Bramble, 121 N.C. 603, 28 S.E. 269; State v. Atkinson, 141 N.C. 735, 53 S.E. 228.

In State v. Parish, 151 N.C. 659, 65 S.E. 762, the court said: "Unless the requirement of the statute, both as to time and to manner, are complied with, the appeal is not in this court. The defect is jurisdictional, and we have no power to allow amendment, and the appellee has a right to have the appeal dismissed. State v. Bramble, 121 N.C. 603, 28 S.E. 269; State v. Gatewood, 125 N.C. 695, 34 S.E. 543, and numerous cases there cited." To same effect: State v. Duncan, 107 N.C. 818, 12 S.E. 382; State v. Payne, 93 N.C. 613. In State v. Keebler, 145 N.C. 562, 59 S.E. 873, it is said: "In this state an appeal is a right, but not an absolute right. If the appeal bond is not given, or the proper certificate in lieu thereof, the appeal is dismissed."

Appeal dismissed.